Underlying Danger of Buying Private Columbarium Niches Revisited
Introduction
In recent years, the sale of private columbarium niches has been a lucrative and expanding business in Hong Kong. For our readers’ interests, in October 2011, we wrote on the “Underlying Danger of Buying Private Columbarium Niches”. In light of the recent decision in Regal Shining Limited v Secretary for Justice, HCMP 2781/2012, we write further to examine the present legal position of private columbarium niches in Hong Kong.
Facts
The Plaintiff (“RSL”) is the owner of the Remaining Portion of Lot No.714 in Demarcation District 450, New Territories (the “Lot”). On 30 June 2008, a set of building plans were submitted on RSL’s behalf to the Building Authority whereby RSL proposed to re-develop the Lot as “Taoism Place cum meditation rooms”.
Eventually, a Taoist temple known as Hong Dao Tang (“HDT”) was erected on the Lot in about January 2010. Inside HDT, there were around 26,000 niches for the storage of ashes resulting from the cremation of deceased Taoist believers.
In December 2010, the Development Bureau, as an interim measure, published a document known as Information on Private Columbarium (the “Information”). Part A of the Information sets out the private columbaria that are compliant with user restrictions in the land leases and the town planning requirements and are not in illegal occupation of Government land. Part B lists out those private columbaria which have yet to be checked for compliance before inclusion in Part A or have been confirmed to be non-compliant with one or more of the said user restrictions and/or occupying Government land illegally.
Claims and Counterclaims
HDT has been classified as falling within Part B of the Information. RSL commenced action, by way of an Originating Summons filed on 7 December 2012 (the “Summons”) seeking various declaratory reliefs in relation to the use of the Lot.
On the other hand, the Defendant, i.e. the Secretary for Justice, counterclaimed for:-
1. A declaration that RSL is in breach of General Condition No.15 in Gazette Notice No.364 of 1934 as amended by Gazette Notice No.50 of 1940 in the New Grant No.3306 (by which the Lot is leased) (“GC15”) and/or clause 7(5) (“Cl 7(5)”) of the Government lease deemed to have been issued;
2. An order that RSL do forthwith remove from the Lot all human remains, including any cremated ashes; and
3. An order that RSL do forthwith cease the sale or advertisement of the sale of niches for the storage of ashes resulting from cremation (“Ashes”) on the Lot.
Discussion
RSL raised three specific questions by the Summons:-
1. Whether GC15 prohibits the storage of Ashes on the Lot (the “GC15 Issue”);
2. Whether HDT is a “religious institution” (“RI”) as defined in the Definition of Terms (Revised Version) (the “DOT”) issued by the Town Planning Board (“TPB”) and is a user always permitted in the relevant Outline Zoning Plan (“OZP”); and
3. Whether RSL is entitled, without the consent or approval of the Lands Department or the TPB or any other government or statutory bodies, to store Ashes on the Lot (the “OZP Issue”).
The GC15 Issue
GC15 provides that:
“Without the consent of the District Officer, no grave shall be made on, nor shall any human remains be interred in, or deposited on the lot sold either in earthenware jars or otherwise.” [emphasis added]
The Court interpreted the phrase “human remains” in GC15 based on its ordinary and natural meaning. Noting that Ashes are produced when a human body is cremated, the Court could not see why “human remains” do not include Ashes. The meaning of “human remains” was held not to depend on their chemical composition, but must be considered with common sense. Adding the word “any” to “human remains” in GC15, as the Court held, further fortified the Government’s case that the Ashes are “human remains”.
The Court also cited the policy of GC15 in support of the way it interpreted the meaning of “human remains”. The location of a grave or depository for human remains is a sensitive issue for any community, especially a superstitious one like Hong Kong. Such location is liable to affect the value of the land in the neighbourhood, may give rise to health issues, and would have an impact on human and vehicular traffic at various times of the year. The Court recognised that as at the date of the Government lease in 1953, these considerations were as valid as they are today, not to mention people were even more superstitious in the older days.
Although the Court held that a columbarium and columbarium niches are not covered under the meaning of the word “grave” in GC15, a columbarium would be regarded as for the deposit of human remains in or otherwise on the Lot, which is also a prohibited user under GC15.
The OZP Issue
Under the OZP, the Lot is zoned under “Other Specified Uses” annotated “Business” (“OU(B)”). As provided in the Notes for OU(B) under Schedule I, “RI” is specified as a Column 1 use, meaning that the use of land for such purpose is always permitted. On the other hand, “columbarium” falls neither under Column 1 nor Column 2 (user permitted with or without conditions on application to the TPB).
RSL contended that HDT is a RI, and the storage of Ashes thereat is part and parcel of Taoist religious practice. Thus, such storage accords with RI land use which is always permitted.
The Court noted that there is a fairly overwhelming case that “RI” and “columbarium” are treated differently in the OZP. According to the definitions of “RI” and “columbarium” under the DOT, the essential characteristics of the respective uses are very different – the former is marked by the facilitation of religious services whilst the latter is marked by the facilitation of the keeping of Ashes. While the general population may not have strong adverse feeling about living in the neighbourhood of a RI, which cannot be said in the case of columbaria, the location of the former is unlikely (or less likely) to blight the value of neighbouring land.
Further, in accordance with the Master Schedule of Notes Used in Statutory Plans (the “MSN”), it is clear that columbarium is intended to be a much more restrictive use compared with RI. The former may only be permitted under 3 zonings, namely, (i) “Other Specified Uses” (“OU”) annotated Cemetery, Columbarium, Crematorium and/or Funeral Parlour (Column 1 use); (ii) “Government, Institution or Community” (“GIC”) (Column 2); and (iii) Green Belt (“GB”) (Column 2 use). In contrast, RI is a common use that is permitted in the majority of the land use zonings in the MSN, including commercial and residential zones, either as Column 1 or Column 2 use. In GIC and GB zones where columbarium may be permitted, RI is separately listed as Column 1 use under GIC and a Column 2 use under GB.
Therefore, the Court held that the planning intention is that columbarium and RI are different uses and the former is not subsumed under the latter.
The Court did not accept the proposition that since the columbarium is an integral part of HDT it falls within RI use. While the Government accepts that it cannot be precluded that some RI may contain a small number of niches mainly for deceased ascetics, the columbarium in HDT had 26,000 niches, even more than that allowed (20,000 niches) in an area designated for columbarium use – OU (Columbarium).
In the premises, although HDT is a RI, a user always permitted under the OZP, the storage of Ashes on the Lot is not a permitted user under the OZP even with application to the TPB.
Conclusion
The Summons by the Plaintiff was dismissed and the Counterclaim by the Secretary for Justice was allowed. RSL was: (i) declared to be in breach of GC15 and/or Cl 7(5), (ii) required to forthwith remove all human remains including any cremated ashes, and (iii) required to forthwith cease the sale or advertisement of the sale of niches for the storage of Ashes on the Lot.
On 20 June 2014, the Government gazetted the Private Columbaria Bill to propose new regulations on private columbaria operation. In essence, all private columbaria, unless exempted, are to be subject to licensing by a statutory Private Columbaria Licensing Board. But as suggested in our October 2011 article, pending introduction of the licensing scheme, purchasers of private columbarium niches may hope to protect themselves financially with proper drafting of the licence agreements. Purchasers are advised to at least include clauses to the effect that they shall be indemnified and kept indemnified by the private columbarium developers, against any loss and damage resulting or derived from or incidental to any breach of Government lease conditions or town planning requirements, in particular in relation to the land being used as a columbarium.
Nevertheless, the above case yet illustrated a non-financial risk to purchasers of private columbarium niches: cremated ashes of the deceased, for whom the purchasers would like to lay a final resting place, may still be subject to disturbance in relocation in the event of Government enforcement action. Purchasers are reminded to take this risk into account as well when considering whether to buy private columbarium niches.
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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.
